Will DOJ Beef Up Its Review Of Private False Claims Act Cases?

Earlier this month, the Director of the Justice Department's Civil Frauds Section issued a memorandum directing all DOJ attorneys evaluating False Claims Act (FCA) whistleblower cases to consider whether the government's interests are best served by seeking a dismissal of questionable cases. The memorandum was first published by The National Law Journal and is available here.

The memo appears to signify a significant shift in the way in which DOJ will view cases brought by private whistleblowers, also known as qui tam cases. The FCA gives the government the right to seek dismissal over the plaintiff's objection pursuant to 31 U.S.C. § 3730(c)(2)(A). But, historically, DOJ has only moved to dismiss a very small percentage of such cases. This historical reluctance has been frustrating to industries frequently hit by qui tam cases because even meritless cases can be expensive and time consuming to defend.